Main Provision of the Safety Health and Welfare at Work Act 2005

Important Elements of the Act

One of the aims of the Act is to encourage a responsible attitude on the part of both employers and employees. A system of on-the-spot fines by inspectors is provided for in Section 79 which provides that the level of on-the-spot fine, not to exceed €1000, will be detailed in Regulations. The Minister will be proposing a relatively low fine initially. He will identify in regulations the employment sectors and the minor offences to which this will apply.The Authority will not initiate a prosecution before the due date of payment of an on-the-spot fine and, if the payment is made in time, no prosecution will be launched. If a prosecution is taken, the onus is on the accused to prove that payment has been made.

Under the heading of duties of employees, in general employees must, 

• comply with relevant safety and health laws,
• not be under the influence of an intoxicant at the place of work to the extent that the state he or she is in is likely to endanger his or her own safety, health or welfare at work or that of any other person.
• not engage in improper conduct or behaviour,
• wear personal protective clothing where necessary,
• cooperate with their employer and look out for one another, and
• not do anything which would place themselves or others at risk.

Where an employee is working in a safety critical situation, he or she, subject to regulations, may be required to undergo a periodic medical assessment of fitness to work.

There has been a certain level of concern expressed and not an insignificant amount of misinformation about one of the provisions of Section 13, that relate to possible tests for intoxicants. The Minister has stated on a number of occasions that it is only in particular circumstances or sectors that regulations may set down requirements whereby an employee must, if reasonably required by his or her employer, submit to independent tests by a competent person which are appropriate, reasonable and proportionate. There will be widespread consultation on these regulations.

On the matter of Safety Statements, it will continue to be a requirement on every employer to have a written Safety Statement, which identifies the risks and hazards in the place of work.

Safety Statements of course will be informed by risk assessments which will be based on identification and assessment of all hazards in a workplace. Both risk assessments and safety statements will have to be kept up to date  

In the new Act the Minister has moved to reduce the onus on small business and the farming sector and small businesses by providing that an employer with three or less employees can meet the Safety Statement requirement by adhering to a special Code of Practice to be developed by the Health and Safety Authority for a particular industry or sector. 

The Act, in Section 77provides for two categories of offences. The first category applies to less serious matters and the second category covers all of the more serious offences under health and safety laws.

The Bill (Section 78)provides for a fine under summary jurisdiction not exceeding €3,000 for a person guilty of an offence under the first category of offences set out in Section 77 applying to less serious offences. A person guilty of any other offence set out in Section 77 is liable, on summary conviction, to a fine not exceeding €3,000 or imprisonment up to 6 months or both. On conviction on indictment for a more serious offence, the maximum fine is €3 million or imprisonment for up to 2 years or both.

In addition, the person convicted can be ordered to pay the Authority's costs and expenses.

Section 80 makes explicit the responsibilities of directors and managers. Primary responsibility for worker safety and health falls on employers, including in private companies and in the public sector, because it is they, in effect, who create the risks. Company directors and managers therefore carry a significant social responsibility to protect safety and health.

Section 80 adopts an evidence-based approach. It provides that when an offence under health and safety laws is committed by an undertaking and the acts involved were authorised or consented to or were attributable to connivance or neglect on the part of a director, manager or other similar officer in the undertaking, both the person and the undertaking will be guilty of an offence and liable to be proceeded against and punished as if the person was guilty of the offence committed by the undertaking. If it is proven in such a case that the person's duties included making decisions that affected the management of the undertaking, it is presumed, until the contrary is proved, that the acts which resulted in the offence were authorised, consented to or attributable to connivance or neglect on the part of that person.

Other important elements of the Act